Citation Nr: 0413211
Decision Date: 05/21/04 Archive Date: 05/28/04
DOCKET NO. 02-01 884 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection, or to compensation as if
service-connected, for hypertension, including as secondary
to or aggravated by low back disability for which the veteran
has been awarded compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151 (West 2002).
REPRESENTATION
Appellant represented by: Robert P. Walsh, Attorney at
Law
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Counsel
INTRODUCTION
The veteran served on active duty from September 1954 to
April 1969.
This matter was initially addressed by the Board of Veterans'
Appeals (Board) in a May 1996 Board decision which referred
to the RO for action the claim of entitlement to compensation
benefits for hypertension as aggravated by a disability for
which the veteran was seeking compensation under 38 U.S.C.A.
§ 1151.
In February 2001 the Board again referred the claim of
compensation for hypertension to the agency of original
jurisdiction for adjudication. A rating decision was issued
in April 2001 by the Department of Veterans Affairs (VA)
Regional Office (RO) in Detroit, Michigan, which denied
entitlement to compensation for hypertension. The veteran
timely disagreed with this decision in May 2001. However, no
statement of the case was issued, and the Board remanded the
claim to the in September 2001. After the RO issued a
statement of the case in January 2002, the veteran's timely
substantive appeal was received in February 2002.
In July 2003 the Board remanded the claim so that the agency
of original jurisdiction could consider new evidence
submitted to the Board following certification of the appeal.
The claim again returns to the Board for appellate review.
The Board notes that, after review of the claims file, it
finds that the issue on appeal more accurately stated as
listed on title page of this decision.
FINDINGS OF FACT
1. VA notified the veteran of the evidence needed to
substantiate his claim, explained to him who was responsible
for submitting such evidence, and obtained and fully
developed all other evidence necessary for the equitable
disposition of his claim.
2. The veteran was not diagnosed as having hypertension in
service or before 1987, when nearly 20 years had elapsed
following discharge therefrom.
3. The probative and competent medical evidence of record
establishes that hypertension was present prior to VA medical
treatment provided in July 1987, and that hypertension is not
worsened by the back disability for which compensation
benefits were granted pursuant to the provisions of
38 U.S.C.A. § 1151.
CONCLUSION OF LAW
Hypertension was not incurred in or aggravated by active, may
not be presumed to have been so incurred; nor is such
disorder proximately due to, the result of, or aggravated by
a back disability for which compensation benefits were
granted pursuant to the provisions of 38 U.S.C.A. § 1151. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304,
3.306, 3.307, 3.309, 3.310(a) (2003); Allen v. Brown, 7 Vet.
App. 439 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that he did not have hypertension until
he incurred back disability as a result of VA treatment. He
contends that the back disability, for which he has been
awarded compensation benefits pursuant to the provisions of
38 U.S.C.A. § 1151, aggravates his hypertension, making it
more difficult to control.
Preliminary Matter: Duties to Notify & to Assist
During the pendency of this claim, there have been numerous
changes in laws governing veterans' benefits, in VA
regulations, and in the interpretation of laws and
regulations governing veterans' benefits.
One of the changes in the applicable law during the pendency
of this claim was enactment in November 2000 of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). This law redefined the obligations of
VA with respect to the duty to assist, and included an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
38 U.S.C.A. § 5103A(f) (West 2002).
The VCAA describes certain duties owed by VA to a claimant.
First, VA must notify the claimant of evidence and
information necessary to substantiate his or her claim and
inform the claimant whether he or she or VA bears the burden
of producing or obtaining that evidence or information. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
Second, VA has a duty to assist the claimant in obtaining the
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c). The VCAA also provides that
the duty to assist includes providing a medical examination
or obtaining medical opinion if necessary to make a decision
on the claim.
The procedural history of this claim includes several actions
under provisions preceding the VCAA and numerous actions
under the VCAA. Summarizing briefly those actions, the claim
now on appeal was referred to the RO in a May 1996 Board
decision and in a February 2001 Board decision, and was
directly addressed in a September 2001 Board decision. In
the February 2001 decision wherein the Board referred the
claim for compensation for hypertension to the RO, the REMAND
section of that decision advised the veteran of the enactment
of the VCAA, and discussed the provisions of that act
generally. The remand directed the RO to conduct
notification and development action as required under the
VCAA.
By a letter issued to the veteran in March 2001, regarding
his claims for benefits under 38 U.S.C.A. § 1151 for foot,
leg, and low back disabilities, the RO specifically advised
the veteran of the enactment of the VCAA, and identified the
veteran's responsibility to identify or submit evidence and
discussed VA's responsibility to develop claims.
Later in that same month, the RO issued a development letter
specific to the veteran's claim for benefits for
hypertension. That development letter described in detail
different types of evidence the veteran could identify or
submit to establish entitlement to benefits for hypertension.
After the veteran had been sent the above notifications and
correspondence, the RO issued an April 2001 rating decision
which denied the veteran's claim for benefits for
hypertension. That rating decision was apparently issued
with an April 2001 SSOC regarding the veteran's claim for
compensation for back disability. That SSOC advised the
veteran of the provisions of the VCAA, providing him with the
complete text of 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107.
In its September 2001 decision, the Board REMANDED the claim
for compensation for hypertension to the RO. Beginning at
page 4, in the decision portion, the Board discussed the
enactment of the VCAA and the provisions of that act, at some
length. A Decision Review Officer (DRO) rating decision
prepared in October 2001 and issued to the veteran in January
2002, with a statement of the case (SOC), again advised the
veteran that there was no medical opinion of record favorable
to his claim. The January 2002 cover letter to the DRO
rating decision and SOC specifically discussed the enactment
of the VCAA, on page three, and, on page four, advised the
veteran that he submit or identify any additional evidence he
wanted VA to consider. This SOC, unfortunately, included the
provisions of 38 C.F.R. § 3.159 as in effect when the claim
at issue was filed, rather than as revised to implement the
VCAA.
Following issuance of the October 2001 DRO decision and the
January 2002 SOC, the veteran submitted additional argument,
and noted that information relevant to his claim was already
in the claims files.
The VCAA provides that the duty to assist includes providing
any medical examination or obtaining a medical opinion if
necessary to make a decision on the claim.
In this case, the veteran requested that he be afforded VA
examination as to the etiology of his hypertension, and that
examination was conducted in August 2002, based on a
development request by the Board. The duty to provide
medical examination and to obtain medical opinion has been
fulfilled.
In response to the Board's notification to the veteran that
he could submit additional evidence, he responded, in August
2002, identifying VA medical centers at which he had received
treatment. After the Board's development of the case, the
claim was remanded, by the Board in July 2003, for
consideration by the RO of the evidence developed by VA. The
Board again advised the veteran of the enactment of the VCAA,
and advised him that he was entitled to consideration of the
evidence by the RO. The August 2003 SSOC issued thereafter
included no further discussion of the VCAA, but did again
notify the veteran of applicable regulations and of the
evidence reviewed in connection with the claim for benefits
for hypertension.
The Board further notes that the veteran is represented by an
attorney. Moreover, his attorney has submitted
communications on behalf of the veteran which reflect that
the attorney is cognizant of the VCAA and VA's duties to the
veteran and the veteran's rights and responsibilities under
the VCAA.
The many communications of record from VA to the veteran and
his attorney and from the veteran and his attorney
demonstrate that both have been notified of the VCAA and of
the requirements that VA notify and assist the claimant.
The United States Court of Appeals for Veterans Claims (CAVC)
has held that a VCAA notice, as required by 38 U.S.C.A. §
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. Pelegrini v. Principi, 17 Vet. App.
412 (2004).
In this case, the veteran was provided with numerous
notifcations of the VCAA and the provisions of the VCAA, in
connection with other claims on appeal during the pendency of
this claim, before the RO adjudicated this claim for
benefits.
The veteran was provided several VCAA notices in this case
prior to the initial AOJ adjudication denying the claim
addressed in this decision. The veteran was provided
additional VCAA notices after the claim addressed in this
decision was denied. The Board believes that VCAA notices
issued prior to the decision on this claim, even though
issued with respect to other claims which were also on
appeal, complies with the requirements of the law as found by
the CAVC in Pelegrini.
If these notifications do not, however, meet the express
requirements set forth in Pelegrini, the correspondence form
the veteran and his attorney demonstrates, as noted above,
the veteran had received the information about the VCAA prior
to the adjudication of this claim. While the CAVC did not
address whether, and, if so, how, the Secretary can properly
cure a defect in the timing of the notice, it did leave open
the possibility that a notice error of this kind, if it is a
notice error, may be non-prejudicial to a claimant.
The CAVC in Pelegrini found, on the one hand, that the
failure to provide the notice until after a claimant has
already received an initial unfavorable AOJ determination,
i.e., a denial of the claim, would largely nullify the
purpose of the notice and, as such, prejudice the claimant by
forcing him or her to overcome an adverse decision, as well
as substantially impair the orderly sequence of claims
development and adjudication. Pelegrini, 17 Vet. App. at
428, 429.
On the other hand, the CAVC acknowledged that the Secretary
could show that the lack of a pre-AOJ decision notice was not
prejudicial to the appellant. Id. ("The Secretary has
failed to demonstrate that, in this case, lack of such a pre-
AOJ-decision notice was not prejudicial to the appellant.")
In light of these two findings on prejudice, the Board finds
that the CAVC in Pelegrini has left open the possibility that
issuance to a veteran of notice under the VCAA regarding one
claim but without specific reference to another pending claim
is not a prejudicial error to a claimant as to the claim not
specifically referenced in the notice.
To find otherwise would require the Board to remand every
case in which there is more than one claim for the purpose of
having the AOJ provide a separate pre-initial adjudication
notice as to each claim.
The only way the AOJ could provide such a notice in cases
such as this, where initial adjudicative determinations were
issued prior to enactment of the VCAA as to some issues, but
not all claims on appeal were decided at the same time, would
be to vacate all initial adjudicative determinations and
substantive appeals in claims which had not yet become the
subject of a final adjudication when the VCAA was enacted,
and would nullify the notice of disagreement and substantive
appeal of the initial adjudication in this case that were
filed by the appellant prior to the VCAA to perfect the
appeal to the Board. This would be an absurd result, and as
such it is not a reasonable construction of 38 U.S.C.A.
§ 5103(a). There is no basis for concluding that harmful
error occurs simply because a claimant receives VCAA notice
after an initial adverse adjudication.
Moreover, while strictly following the express holding in
Pelegrini would require the entire rating process to be
reinitiated when notice specifically referencing an appealed
issue was not provided prior to the first agency adjudication
of that specific issue, this could not have been the
intention of the CAVC, otherwise it would not have taken
"due account of the rule of prejudicial error" in reviewing
the Board's decision. See 38 U.S.C. § 7261(b)(2); see also
Conway v. Principi, 353 F. 3d 1369 (Fed. Cir. 2004) (There is
no implicit exemption for the notice requirements contained
in 38 U.S.C. § 5103(a) from the general statutory command set
forth in section 7261(b)(2) that the Veterans Claims Court
shall "take due account of the rule of prejudicial error.")
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans' benefits, it
is entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate
decision and becomes the single and sole decision of the
Secretary in the matter under consideration. See 38 C.F.R.
§ 20.1104.
There simply is no "adverse determination," as discussed by
the CAVC in Pelegrini, for the appellant to overcome in this
case, since the initial determination as to the issue on
appeal was not made until after the veteran had received
notice of the VCAA.
The VCAA requires that the duty to notify is satisfied, and
that claimants be given the opportunity to submit information
and evidence in support of their claims. Once this has been
accomplished, all due process concerns have been satisfied.
See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v.
Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102
(harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice as to the claim for benefits for
hypertension as secondary to a disorder compensated under
38 U.S.C.A. § 1151 was harmless error. While the notice of
enactment of the VCAA provided to the appellant in the
Board's February 2001 Remand was not given specific to the
claim at issue, and March 2001 VCAA notice provided to the
appellant was not specific to the issue on appeal, and the
March 2001 notice to the appellant specific to the issue on
appeal did not reference the VCAA, the communications as a
whole provided the appellant with notice of the VCAA prior to
the first AOJ adjudication of the claim at issue in this
decision. The content of the notices provided in the Board's
Remand and thereafter by the RO fully complied with the
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).
The claimant has been provided with many opportunities to
submit evidence and argument in support of his claim, and to
respond to VA notices. The Board finds that there is no
prejudicial error to the claimant.
The decision in Pelegrini held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about
the information and evidence that VA will seek to
provide; (3) inform the claimant about the information
and evidence the claimant is expected to provide; and
(4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim,
or something to the effect that the claimant should
"give us everything you've got pertaining to your
claim(s)."
This new "fourth element" of the notice requirement
comes from the language of 38 C.F.R. § 3.159(b)(1).
The veteran was advised, by the March 2001 letter which
detailed the many types of evidence which might be
relevant, that he should submit or identify any evidence
he had.
The record reflects that the veteran was afforded
numerous opportunities to identify or submit evidence,
and that he and his attorney did submit numerous
statements describing evidence felt to be relevant.
The Board finds that the many notifications of record
are adequate to notify the veteran that he should submit
or identify any evidence he had regarding his claim,
particularly when considered in the context of the
lengthy process of claim development as to the
38 U.S.C.A. § 1151 claim.
The Board finds that VA has done everything reasonably
possible to assist the claimant. Adjudication of the
claims may proceed, consistent with the VCAA.
The record demonstrates that remand for further action
in accordance with the VCAA would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result
in a particular case; such adherence would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran); Sabonis v. Brown, 6
Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran are to be
avoided). VA has fully satisfied its duties to inform
and assist the veteran as to the claims addressed in
this decision in this case.
Factual Background
The veteran submitted several claims during the period from
1988 through July 1995, including a claim that hypertension
was aggravated by a back disorder for which the veteran was
seeking compensation pursuant to the provisions of
38 U.S.C.A. § 1151. In September 2001 the Board granted
entitlement to compensation benefits for a low back
disability pursuant to the provisions of 38 U.S.C.A. § 1151.
The veteran contends in particular that he did not have
problems with high blood pressure prior to his back injury
during 1987 VA treatment which he contends caused current low
back disorders and the pain resulting from those disorders.
He stated that none of his records indicated high blood
pressure until October 1987, when he was admitted for severe
pain in his back and legs. He further contended that his
blood pressure is affected by the amount of back pain he has
and is almost impossible to control some days.
In support of his claim, the veteran has stated that no
diagnosis of hypertension was assigned, and he was never told
that he had hypertension, prior to a July 1987 cardiac
catheterization.
Moreover, he did not believe that he had hypertension prior
to the July 1987 cardiac catheterization, because he had no
symptoms of high blood pressure.
The veteran's service medical records disclose no diagnosis
or treatment of hypertension in service.
The clinical records associated with the claims files are
voluminous. The clinical records essentially begin in April
1987, when the veteran sought VA treatment for chest pain.
At that time, he indicated that he was not under the care of
a primary physician. Angina pectoris was the assigned
diagnosis. Following this VA admission, he underwent
cardiology evaluation, including a treadmill stress test in
May 1987. During treadmill stress testing, he developed
exercise-induced cardiac ischemia. He underwent cardiac
catheterization in July 1987, and records of his medical
treatment thereafter are extensive.
There are two clinical opinions of record which directly
address whether there is a relationship between hypertension
and a back disability for which the veteran has been awarded
compensation pursuant to the provisions of 38 U.S.C.A.
§ 1151.
The first of these two opinions was rendered following
independent examination conducted in April 2000. At that
time, the veteran reported that, subsequent to a procedure
following which he developed back problems, he had increasing
hypertension problems. He reported that he continued to
require blood pressure medications. Blood pressure was
150/60. The examiner, ESR, MD, provided a medical opinion
that the veteran's history of worsening problems with
hypertension was a credible complication of his chronic pain
syndrome and the stress involved in his claim against VA.
The only other opinion specific to the claim on appeal is the
report of VA review conducted in August 2002. The examiner
was requested to determine whether the veteran had
hypertension, and to provide an etiology of that hypertension
and opinion as to whether it was at least as likely as not
that the veteran's low back disability caused his
hypertension or aggravated it beyond its normal course.
The examiner stated that he had reviewed the veteran's claims
files to determine the onset of his hypertension, and the
report reflects detailed review and discussion of numerous
blood pressure reading between April 1987 and the incident in
July 1987, which the veteran states was the onset of back
disability.
The examiner discussed the April 1987 VA hospitalization for
angina. The veteran reported having chest pain for about
three weeks prior to that admission. The examiner noted that
cardiac risk factors included a strong family history of
myocardial infarction, an absence of routine primary medical
care, a history of heavy cigarette smoking, weight gain and
obesity. The examiner concluded that blood pressure readings
taken on multiple days and at various times during that April
1987 hospitalization disclosed that he had hypertension, even
though the veteran does not recall being told he had
hypertension.
Moreover, the examiner noted, the veteran's blood pressure
readings included a state I reading of 180/86 and a post-test
blood pressure of 200/70. The examiner's review and
conclusions reflect that the veteran did not know that he had
hypertension prior to VA treatment in April 1987 because he
had not been under medical care. The examiner noted that,
following the April 1987 VA hospitalization, the veteran was
treated with Cardizem and Isordil, among other medications.
The Board notes, for reference only and without reliance
thereon, that Cardizem is a coronary vasodilator and Isordil
is a peripheral vasodilator. See Dorland's Illustrated
Medical Dictionary 473, 861 (27th ed. 1988). Thus, although
the veteran does not recall being told that he had
hypertension, he was, in fact, being treated with medications
to reduce hypertension.
The examiner then compared the veteran's blood pressure to
his reported pain levels for the one-year period from August
2001 to August 2002. The examiner noted that this period was
chosen because he was seen 10 times during that period and
each treatment episode included documentation of his blood
pressure and his subjective estimate of his pain.
The veteran reported, during physical examination, that he
was irritable, angry, and in pain all the time. He reported
that he used oxygen at home for a period of time due to
shortness of breath. He was currently able to walk 100 feet
before becoming short of breath.
The examiner concluded that there was no apparent
relationship between the veteran's blood pressure and his
subjective complaints of pain. The examiner also concluded
that his blood pressure was stable, had been well-controlled
during the period reviewed, and had, in fact, been well-
controlled since March 2000. The examiner further noted that
the modalities used to treat the back disorder had been found
to cause, aggravate, or contribute to development of
hypertension. The assigned diagnosis was hypertension,
stable, well-controlled, onset on or before April 1987.
Criteria
The law provides that service connection may be granted for
disability resulting from disease or injury that was incurred
in or aggravated by a veteran's active service, or may be
granted for diseases defined as chronic, to include
hypertension, and manifested, generally to a degree of 10
percent or more, within a specified presumptive period after
separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309.
A veteran is also entitled to service connection for a
disability which is proximately due to or the result of a
service-connected disease or injury. 38 C.F.R. § 3.310(a).
Secondary service connection may also be granted for the
degree to which a non-service-connected disorder is
aggravated by a service-connected disorder. Allen v. Brown,
7 Vet. App. 439 (1995).
A preexisting injury or disease will be considered to have
been aggravated by active military, naval, or air service,
where there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease. 38
U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).
Temporary or intermittent flare-ups of a pre-existing injury
or disease are not sufficient to be considered "aggravation
in service" unless the underlying condition, as contrasted to
symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304,
306-07 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292
(1991)).
This presumption of aggravation applies where there is a
worsening of the disability regardless of whether the degree
of worsening was enough to warrant compensation; the veteran
need not show a specific link between his in-service activity
and the deterioration of his pre-service disability. Browder
v. Derwinski, 1 Vet. App. 204, 207 (1991); Hensley v. Brown,
5 Vet. App. 163 (1993). Aggravation may not be conceded
where the disability underwent no increase in severity during
service, based on all the evidence pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R.
§ 3.306(b); Falzone v. Brown, 8 Vet. App. 398 (1995).
Intermittent or temporary flare-ups of a preexisting injury
or disease do not constitute aggravation; rather, the
underlying condition, as contrasted with symptoms, must have
worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
Accordingly, a finding of aggravation contemplates "a lasting
worsening of the condition" -- that is, a worsening that
existed not only at the time of separation, but one that
still exists currently. See Routen v. Brown, 10 Vet. App.
183, 189 n.2 (1997); see also Verdon v. Brown, 8 Vet. App.
529, 538 (1996).
In order for a claim to be granted, there must be competent
evidence of current disability (established by medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (established by lay or medical evidence);
and of a nexus between the inservice injury or disease and
the current disability (established by medical evidence).
See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997),
cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998);
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d
604 (Fed. Cir. 1996) (table).
Medical evidence is required to prove the existence of a
current disability and to fulfill the nexus requirement. Lay
or medical evidence, as appropriate, may be used to
substantiate service incurrence. See Layno v. Brown, 6 Vet.
App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
Analysis
There is no medical evidence that the veteran had
hypertension in service or within one year following service.
The veteran himself has stated that he did not have
hypertension prior to 1987. There is no support for a
finding that he incurred hypertension in service or that such
incurrence may be presumed.
In this case, the veteran contends that he did not have
hypertension prior to July 1987, and that onset of
hypertension was linked to onset of a back disorder incurred
as a result of VA treatment in July 1987. The veteran's lay
contention, however, is not competent evidence to establish
that onset of hypertension was due to a back disorder
incurred following VA treatment in July 1987. Although the
veteran is competent to testify as to his symptoms, where the
determinative issue involves a question of medical diagnosis
or causation, only individuals possessing specialized medical
training and knowledge are competent to render such an
opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5
(1992).
The examiner who conducted August 2002 VA examination and
review of the claims files concluded that the veteran did, in
fact, have hypertension prior to July 1987 VA treatment, the
alleged date of onset of a back disability. The examiner who
provided an April 2000 medical opinion did not discuss
whether the veteran did or did not have hypertension prior to
July 1987; rather, he noted only that the veteran's report
that his hypertension developed after July 1987 was credible.
This statement is far less persuasive than the opinion of the
examiner who provided an April 2000 opinion. Thus, the
medical evidence is unfavorable to the veteran's contention
that the onset of his hypertension was etiologically linked
to onset of a back disorder.
The evidence favorable to the veteran's contention that back
pain resulting from his back disorder has aggravated his
hypertension and made it difficult to control is the April
2000 opinion that hypertension is a credible complication of
chronic pain syndrome.
The August 2002 VA opinion is unfavorable to the veteran's
contention that his hypertension has been aggravated by the
back disability for which compensation benefits have been
awarded pursuant to the provisions of 38 U.S.C.A. § 1151. In
particular, the examiner provided specific examples to
support his conclusion that the veteran's hypertension did
not increase when his pain increased. Moreover, the examiner
concluded that the veteran's hypertension was stable and had
been well-controlled since March 2000.
These conclusions reflect that, although it is certainly
logical and credible that there may have been times when the
veteran's hypertension was more difficult to control because
of his pain, such episodes were temporary or intermittent,
and did not result in permanent worsening or hypertension or
permanent inability to control hypertension, since the
veteran's hypertension is now stable and well-controlled.
Temporary or intermittent symptoms, as noted above, in the
absence of an increase in underlying pathology, do not
constitute aggravation. 38 C.F.R. § 3.306; Hunt, supra.
The conclusions of the examiner who conducted the August 2002
examination and provided the August 2002 opinion are of
greater weight and persuasive value than any other evidence
of record. In particular, the August 2002 report reflects
thorough review of the pertinent records, explains why
numerous specific clinical findings cited support the
reviewer's conclusions, and the reviewer has addressed the
totality of the evidence of record.
The August 2002 opinion and conclusions, which are
unfavorable to the veteran's claim, are of greater weight and
persuasive value than the other medical opinion of record,
considered together with the veteran's lay contentions.
The preponderance of the evidence is against the veteran's
claim. The provisions of 38 U.S.C.A. § 5107(b) regarding
resolution of reasonable doubt are not applicable to warrant
a more favorable determination.
ORDER
Entitlement to service connection or for compensation as if
service-connected for hypertension, including on the basis of
aggravation secondary to back disability for which
compensation benefits pursuant to the provisions of
38 U.S.C.A. § 1151 has been granted, is denied.
____________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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